Dispute Resolution Chamber
Texto da decisão
REF 19-02087
Decision of the Dispute Resolution Chamber
(DRC) Judge
passed on 24 February 2020
regarding an employment-related dispute concerning the player Leonardo Paulino
Marques da Silva
BY:
Philippe Diallo (France), DRC Judge
CLAIMANT:
Leonardo Paulino Marques da Silva, Brazil
Represented by Mr. Eduardo Carlezzo
RESPONDENT:
Sporting Clube de Espinho, Portugal
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I.
FACTS OF THE CASE
1.
In accordance with the information available in the Transfer Match System (TMS), on 16
August 2018, the Brazilian player, Mr. Leonardo Paulino Marques da Silva (hereinafter: the
player or the Claimant) was registered with the Spanish club, Racing Club de Ferrol
(hereinafter: RC Ferrol).
2.
On 20 June 2019, the player’s intermediary and a representative of the Portuguese club,
Sporting Clube de Espinho (hereinafter: the club or the Respondent), exchanged messages
via WhatsApp regarding the player’s possible loan from RC Ferrol to the club.
3.
On the same date, i.e. 20 June 2019, the club’s representative wrote the following message:
“To Leo Marques we offer a one-year loan contract, salary of EUR 500 per month,
accommodation (apartment) e alimentation. We shall remain with at least 25% of a future
transfer. Regards. Bruno Santos, vice-president of Sporting Clube de Espinho”.
4.
Subsequently, the player’s intermediary replied as follows: “Ok Bruno, I’m going to send
them and reaffirm that the club has a great exposure, emphasizing that he will arrive to
take the old Leo spot, with responsibility of making the difference in order to attract other
business”.
5.
On 4 July 2019, the club issued a statement informing, inter alia, that: “[the player] coming
from [Brazil] […] will remain under full responsibility of our club during the period from July
8th 2019 until August 31st 2019, for sports competitions of our football team. We further
declare for due purposes that we take responsibility for his means of subsistence,
accommodation, food, medical assistance and hospital care, as well as any expenses of
repatriation. [The player] will stay at [….] during his authorized period of stay in Portugal,
for the completion of sports tests at our club”.
6.
On the same date, i.e. 4 July 2019, the player flew from Campinas (Brazil) to Lisboa
(Portugal) and then from Lisboa to Porto (Portugal). In accordance with the player, the plane
tickets were bought by his own expenses.
7.
On 8 July 2019, RC Ferrol, the club and the player signed a transfer agreement drafted in
Spanish, by means of which the parties agreed, inter alia, that the player would be
transferred from RC Ferrol to the club (hereinafter: the transfer agreement).
8.
In accordance with clause 2 of the transfer agreement, the player would join the club’s first
team and sign an employment contract accordingly. The same provision also established
that: “the conditions of the employment contract will be exclusively negotiated between
the player and [the club], in line with the applicable regulations” (freely translated to
English).
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9.
Additionally, under clause 4 of the transfer agreement, the club undertook to pay RC Ferrol
60% of any future amount achieved as a result from the player’s transfer to a third club
until 1 August 2020.
10.
In accordance with the information available in the TMS, on 26 July 2019, RC Ferrol entered
a transfer instruction to release the player permanently to the club.
11.
On 8 August 2019, the club sent the player’s intermediary an e-mail stating, inter alia, that:
“there is no interest on his recruitment for technical reasons and after the medical tests
performed, fact that we hereby give you notice for every legal purposes”. In the same
opportunity, the club requested the player to leave its accommodation, as well as it
informed that such results were already notified to the Portuguese immigration authorities
and to the Portuguese Football Federation (PFF).
12.
Subsequently, on 9 August 2019, RC Ferrol cancelled the transfer instruction previously
added to the TMS regarding the player’s permanent release.
13.
On 3 September 2019, the player sent the club a first notice stating, inter alia, that the club
was in breach of its obligations towards him and arguing the following: “the player wants
to irrevocably comply with the terms of the transfer agreement, in accordance with the
offer presented to him by [the club], reason why we herein demand [the club] to
immediately comply with the transfer agreement and provide the player with his
employment contract dully signed, as well as put him alongside to his colleagues and enable
him to keep participating of the training camp”.
14.
On 12 September 2019, the player sent the club a reminder of his previous correspondence.
15.
On 18 September 2019, the player sent the club a final warning granting it with a 48 hours’
deadline in order to demonstrate its interest in seeking an amicable solution to the case,
under penalty of submitting the matter to FIFA “requesting all the amounts due to [the
player], as well as the applicable disciplinary sanctions for the breach committee by your
club”.
II.
PROCEEDINGS BEFORE FIFA
16.
On 4 November 2019, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a.
17.
The claim of the player
In his claim, the player held that, after receiving an offer from the club, he terminated his
employment relationship with RC Ferrol and signed the transfer agreement in order to be
permanently transferred to the Respondent.
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18.
In this context, the player stated that he travelled to Portugal, joined the club’s trainings
and friendly matches and was even announced in the club’s social media as a new member
of the team. However, the player sustained that he was never provided with an employment
contract, despite of having requested so.
19.
Subsequently, the player referred to his default notices as well as to the wording of the
transfer agreement. Accordingly, the player recalled the general legal principle of pacta sunt
servanda in order to conclude that the club breached its duties and, hence, shall be liable
to the consequences that follow.
20.
In view of the above and in line with art. 17 of the FIFA Regulations on the Status and
Transfer of Players (RSTP), the player requested the following amounts to be paid by the
club:
a. EUR 6,000 “as compensation for the breach of contract based in the amount due to
the Claimant as salaries, plus 5% interest per year”;
b. BRL 875, “as reimbursement of travel costs”; and
c. EUR 3,600 “as compensation for food expenses”.
21.
Finally, the player also mentioned that any procedural costs should be borne by the club.
b.
Position of the club
22.
In its reply, the club opposed the player’s allegations and claimed that his requests should
be entirely dismissed.
23.
In accordance with the club, it invited the player to a trial period at its facilities in order to
analyse the possibility of a future employment relationship. Nevertheless, the club pointed
out the player was not approved neither in the technical nor in the medical tests and,
consequently, that no employment contract was ever concluded between the parties.
24.
In support of its allegations, the club filed a medical report signed by its medical staff on 3
January 2020 informing that “[the player] was submitted to a sports medical examination
on July 18th 2019, at [the club] facilities, being such examination inconclusive, requesting
him to perform complementary tests, which were never provided and for that reasons he
was not considered fit to practice such sports modality”.
25.
In addition, the club stressed that, on 20 July 2019, it notified the player in person that he
would not be able to join the squad. Further, the club referred to its e-mail of 8 August
2019 and pointed out that the unsatisfactory performance was also formalized to his
intermediary in written.
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26.
In continuation, the club mentioned that the announces and photos published in social
media were made by third parties “without any connection, knowledge or consent of the
club”.
27.
Finally, the club recalled the content of the transfer agreement and held that it did not
establish any obligation regarding the negotiations with the player. Therefore, the club
concluded that it could “freely and solely” decide to sign him (or not).
28.
In view of the foregoing, the club held that “the claim must be denied and dismissed, with
the corresponding legal consequences”.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
29.
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC
Judge) analysed whether he was competent to deal with the case at hand. In this respect,
he took note that the present matter was presented to FIFA on 4 November 2019 and
submitted for decision on 24 February 2020. Taking into account the wording of art. 21 of
the June 2020 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
30.
Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (edition January 2020), he is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international
dimension between a Brazilian player and a Portuguese club.
31.
Subsequently, the DRC Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (edition January 2020), and
considering that the present claim was lodged on 4 November 2019, the October 2019
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
32.
His competence and the applicable regulations having been established, the DRC Judge
entered into the merits of the dispute. In this respect, the DRC Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
33.
The DRC Judge then moved to the substance of the case and acknowledged that the parties
strongly dispute whether there was an employment relationship between them and, if so,
the consequences thereof.
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34.
On his part, the player argued that he was de facto employed by the club after signing the
transfer agreement and joining the club’s first team. In addition, the player claimed that the
parties agreed in a fixed remuneration via WhatsApp, but that the club – acting in bad faith
– had never provided him with a written contract.
35.
On the other hand, the club categorically denied the existence of an employment
relationship with the player. By doing so, the club admitted that he participated in trainings
and friendly matches however only for the sake of a probation period. In this respect, the
club clarified that the player was not approved in the tests and, as such, was dully informed
that he would not be able to permanently join its squad.
36.
In view of this dissent between the parties, the DRC Judge referred to art. 12, par. 3 of the
Procedural Rules according to which a party claiming a right on the basis of an alleged fact
shall carry the respective burden of proof. With this in mind, the DRC Judge concluded that
it was up to the player to prove that the employment relationship, on the basis of which he
claims reimbursement of expenses and compensation for breach of contract from the club,
indeed existed.
37.
In this context, the DRC Judge carefully analysed the documentation brought forward by
the parties and noted that, despite the player’s allegations in this regard, the parties have
never drafted nor concluded a written contract.
38.
Specifically, the DRC Judge deemed it important to remark that the WhatsApp messages
filed by the player cannot be deemed as an unequivocal evidence of the employment
relationship, since they do not set forth the contractual basis eventually agreed between
the parties.
39.
Furthermore, after analysing said messages in depth, the DRC Judge observed that: (i) they
expressly referred to the conditions of a loan agreement, whereas the other documents on
file (i.e. the transfer agreement and the TMS instructions) provide for a permanent transfer;
(ii) they were sent to a third party rather than the player and were not validly signed for a
club’s legal representative; and (ii) there is not any evidence that the “offer” supposedly
made by the club was ever accepted by the player – even via his intermediary.
40.
In other words, the DRC Judge was firm to determine that the player failed to provide any
evidence capable of demonstrating that the central elements of an employment relationship
(the so-called essentialia negotii), such as its duration, the parties’ duties, the agreed
remuneration, the parties’ consent, etc., had been mutually agreed.
41.
Having established the above, the DRC Judge also wished to outline that the signature of
the transfer agreement by the clubs and by the player do not impact his conclusion on this
matter, since said document expressly set forth that the conclusion of the employment
contract between the player and the club should be exclusively negotiated between the
relevant parties, in line with the applicable regulations.
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42.
Based on the foregoing, the DRC Judge concluded that the player did not meet his burden
of proof in order to demonstrate that an employment relationship was ever initiated with
the club. Therefore, the DRC Judge determined that no compensation is to be awarded
and, consequently, that the player’s claim shall be rejected.
43.
For the sake of completeness, the DRC Judge pointed out that the player’s request for
reimbursement of his flight expenses could not be upheld due to the lack of contractual
basis.
44.
Lastly, the DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to
which “DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, the DRC Judge decided that
no procedural costs were to be imposed on the parties.
45.
Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1.
The claim of the Claimant, Mr. Leonardo Paulino Marques da Silva, is rejected.
2.
This decision is rendered without costs.
For the Dispute Resolution Chamber Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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